Blades v Higgs and Another
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 1865 |
| Date | 13 June 1865 |
| Court | House of Lords |
English Reports Citation: 144 E.R. 1087
IN THE HOUSE OF LORDS.
S. C. 11 H. L. C. 621; 11 E. R. 1474; 34 L. J. C. P. 286; 12 L. T. 615; 11 Jur. N. S. 701; 13 W. R. 927. Adopted, R. v. Townley, 1871, L. R. 1 C. C. 317. Referred to, Brew v. Haren, 1877, L. R. 11 C. L. 202; R. V. Petch, 1878, 38 L. T. 789; Elwes v. Brigg Gas Company, 1886, 33 Ch. D. 568; Brady v. Warren, [1900] 2 I. R. 643.
[214] [!n the house of lords.] blades v. highs and another. June 13th, 1865. [S. C. 11 H. L. C. 621 ; 11 E. R. 1474; 34 L. J. C. P. 286; 12 L. T. 615; 11 Jur. N. H. 701; 13 W. R. 927. Adopted, U. v. Townley, 1871, L. K. 1 C. C. 317. Referred to, Brew v. Harm, 1877, L R. LI C. L. 202;' R. v. I'dch, 1878, 38 L. T. 789; Elwesv. tlrigg Gas Company, 1880, 33 Oh. L). 568; Braily v. Warren, [1900] 2 I. R. 643.] No property exists in wild and unreclaimed animals so long its they remain in a state of nature: but, when killed or reclaimed by the owner of the land on which they are found, or by his authority, they become at once his property absolutely when they are killed, and in a qualified manner when they are reclaimed.-Game found atid kijled by a trespasser under such circumstances as tliat it would be the property of the lowner of the soil, or of the owner of the right of free-warren, if it h4d been found and killed by such owner instead of by the trespasser, in law becomes the absolute property of the owner of the soil or privilege immediately on its being so caught and killed by the trespasser.-So held by the House of Lords, in affirmance of the proposition laid down by Lord Holt in tiutton v. Moody, 1 Ld. Raytn. 250, that, " if A. skirts a hare in the ground of 13., and hunts it and kills it there, the property continues all the while in B." The plaintiff', William Blades, was a, fish-monger and licensed dealer in game, at Stamford, in the county of Lincoln. The defendant, William Higgs, was the steward, and the other defendant, Thomas Percival, was a servant in the employ of the Marquis of Exeter. Between seven and eight o'clock in the morning of the 16th of October, 1860, the plaintiff Bought of a man named Yates two bags, containing about ninety rabbets, and ordered rbhem to be consigned to him at the Midland station at Stamford. The plaintiff upon, the purchase paid 41. 15s. for the nibbits. A few minutes before nine o'clock the same morning, the plaintiff went to the Midland station with a barrow, ifor the purpose of bringing the rabbits away to his shop. Tlie bags arrived, directed to the 1088 BLADES V. HIGGS 20 C. B. (N.B.)215. plaintiff, with ono of his own printed labels; and the plaintiff paid 4s. for the carriage of them to Stamford, and they were delivered to him. As the plaintiff was proceeding to put the two bags into the barrow, and before he had got them in, the defendant Higgs went up to the plaintiff and said he wanted to see what was ill the bags, to which the plaintiff said he should not allow him, and, with the assistance of a porter, the plaintiff lifted the bags on to the barrow. The defendant Higgs remained there until two policemen came up, and he then directed them to see what the bags contained. The plaintiff assenting, one of the policemen looked into the bags, and, seeing that they contained dead game, he allowed [215] the plaintiff to take them, and assisted him in putting them back into the barrow. The other defendant, f'eroival, then came up and said,-"I shall take these rabbits: they are mine;" and the defendant Higgs said also: "'Ihey are the Marquis of Exeter's." The defendants then attempted to get possession of the bags, arid the plaintiff resisted for some time, until at length, one of the policemen observing to him that it was useless for him to struggle any longer, he discontinued his resistance, and the defendants took possession of the bags and their contents. Another game-dealer in the town, named Pollard, was fetched to the spot to buy the rabbits ; and they were sold to him by the defendants, the plaintiff protesting against the sale of his property. The two bags were directed to the plaintiff, and had been sent from the Kelton station on the Midland railway. The counsel for the defendants proposed to prove on their behalf that the persons who transmitted the rabbits to the plaintiff had gone upon the Marquis of Exeter's land and taken and killed the rabbits, and put them into the bags there, and then carried them to the railway station at Kelton : and they contended that the property in the rabbits was in the marquis ; and that the defendants, acting under his authority, were justified in the course they adopted. The learned judge who presided at the trial (Willes, J.), instructed the jury in substance bs follows :-"A man's property in the land does not give him any right of property in animals of a wild nature upon the land after they have become old enough to escape from ib. According to Lord Cuke's Institutes, a man has no property in a wild animal when it is no longer in his power to restrain it. There are many very curious decisions on that branch of the law,-as, for instance, [216] that the owner of a hawk retains his property in it only so long as he can lure it back. As to young animals, a greater property may be acquired in them ; for they may be taken out of the nests : but, so soon aa they are able to escape on to another man's land, the property in them is gone. A man can have no more right to a rabbit than he has to a sparrow on the land of another. It is, I own, very difficult to make any sensible distinction ; and, for myself, I never could see the distinction between a pheasant and a fowl which I choose to rear and encourage on my land. I never could see the distinction between the pheasant preserved and fed on my land and the barn-door family : but there is that distinction in 1}he law ; and [ am bound to administer the law as I find it. The whole theory of the flame-laws is founded on the assumption of there being no permanency in property of this description. One who enters on the land of another without licence is a, trespasser.! The proofs may be as large as the defendants wish ; but, if a person goefc on to the I land of the Marquis of Exeter and kills a rabbit or any number of rabbits, and carries them away and sells them to a game-dealer, the Marquis (j)f Exeter's servants have no right to go to the game-dealer's and take them from him. The property in the rabbits would be in the game-dealer, though the taking them was an act of trespass. He might be subject to be dealt with under the game-laws. It is not like felling a tree, and then carrying it off...
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